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Wall of Separation

People of faith who live in the United States sometimes have to make compromises between their personal beliefs and following the law. As far as U.S. Supreme Court Justice Anthony M. Kennedy is concerned, there is no obvious way to distinguish when violating one’s faith is acceptable and when it isn’t.

“Sometimes when a religious person…is a member of a society he does have to accept all sorts of things that are terrible to him,” said Kennedy during oral arguments this morning in the consolidated case of Zubik v. Burwell.

As examples, Kennedy said Quakers must pay taxes to support America’s wars or a Christian Scientist must report a car accident even if he or she knows doing so will result in the provision of medical care that he or she opposes.

At stake here is whether or not a compromise offered by the federal government to the Affordable Care Act’s (ACA) so-called birth-control mandate, which requires religiously affiliated non-profits to sign a form or write a letter stating their opposition to providing birth control in their employer health-insurance plans, is a burden to those groups that must sign the form or write a letter.

Under the compromise, any religiously affiliated non-profit that opposes birth control merely has to inform the government; the government then takes care of the rest by arranging for the coverage with a third-party insurance company at no cost to the objecting employer.

The three women on the high court seemed to doubt the idea that filling out a simple two-page form constitutes a substantial burden to anyone’s “religious freedom.”

“When will any government law that someone claims burdens their practice ever be insubstantial?” asked Justice Elena Kagan, noting that all religious groups take their own dogma very seriously.

Kagan also said that the United States likely could never “have a government that functions” if religious exemptions were provided to every group that said it had a sincere objection to various laws.

Justice Sonia Sotomayor said she feared this case could actually harm houses of worship if the groups challenging the accommodation win. She said Congress might stop granting exemptions to religious organizations if doing so becomes too complicated or gives too many groups permission to opt out.

Justice Ruth Bader Ginsburg struck at a core argument of groups like the Little Sisters of the Poor, a group of Roman Catholic nuns who run a chain of nursing homes for the elderly and claim that opting out of the ACA requirement leads directly to the distribution of birth control – something they oppose.

“[Opting out] is not an authorization” to provide contraceptives, she said.

Meanwhile Kennedy, a Roman Catholic, said he has consulted the works of Saint Benedict (among other sorts of reading) in an attempt to “try and find a line” that can be clearly drawn between acceptable violations of one’s conscience and unacceptable ones.

Kennedy, who is often seen as the deciding vote in contentious cases like this, did not fully tip his hand during the argument. But it did appear that he was having trouble finding a clear test that would decide when religious groups should be required to obey laws they don’t like and when they should be able to opt out.

Two justices from the court’s conservative wing, however, seemingly have no such philosophical quandary. Chief Justice John Roberts seemed to believe the federal government is primarily concerned with finding an efficient way for women to obtain birth control, rather than doing so out of medical necessity. He pressed U.S. Solicitor General Donald Verrilli on why women can’t obtain coverage for birth control through a health care exchange rather than their employer if they work for a religious non-profit.

You want to provide birth control coverage “seamlessly” and “in one package,” Roberts said to Verrilli.

Verrilli responded that the idea behind the birth-control mandate is to make it so women do not have to obtain multiple health care plans or search out a doctor who can provide them with the care they need.

Roberts did not seem to think any of that mattered.

“It’s a question of who does the paperwork?” he asked, adding that the federal government is trying to “hijack” the health insurance plans already in place for groups like the Little Sisters.

Justice Samuel Alito teamed with Roberts in attacking Verrilli’s argument. He said the fact that the government offered any compromise at all undermines its assertion that providing women with access to certain forms of medical care is essential.

At this point, it’s still difficult to say what the outcome of this case will be. And with only eight justices on the court, a tie vote is possible. If that happens, the decisions of the lower courts will stand – seven have held that the requirement to fill out a form or write a letter is not a substantial burden and one went the other way – but no national precedent will be set.

Stay tuned. A decision is expected by the end of June.

P.S. Several groups were outside the court this morning rallying in favor of birth control access. Americans United was among them, and Barry W. Lynn was one of the speakers.